Governors I. Must Be Sold, A Justice Dept. Memo Says

By BARBARA STEWART

Published: May 16, 2001

The federal government must sell Governors Island, a former military base in New York Harbor, even though part of it was designated a protected national monument by President Bill Clinton in January, according to a legal memorandum prepared by the United States Department of Justice.

The memo, addressed to the federal General Services Administration, which controls the island, has angered New York legislators, who have been pressuring the federal government for years to give Governors Island to New York City and State as a public park and historic site. The Justice Department's advice, based on a Congressional statute requiring that the island be sold, also jeopardizes the status of two 19th-century forts that Mr. Clinton designated national monuments, said Representative Carolyn B. Maloney, a New York Democrat.

''You cannot sell a national monument,'' she said. ''Either it's a monument or it's not.''

For more than 300 years, Governors Island, off Battery Park, was a military base and off limits to the public. But six years ago, when the Coast Guard announced that it was moving out, New York legislators and preservationists began urging the federal government to turn the island over to the city and the state.

But Congress has refused to part with it: since its budget of 1997, Congress has presumed that the government would earn $300 million by auctioning off the island in 2002.

While President Clinton favored transferring the island to the state, the issue became mired in politics, in Washington and in New York, and some feared that his departure from office would put an end to such a transfer. But in one of her first official acts as senator, Hillary Rodham Clinton wrote a letter, also signed by Senator Charles E. Schumer, to President Clinton urging him to give the two 19th-century forts protection as national monuments.

On the day before he left office, Mr. Clinton signed a proclamation designating the forts, Castle Williams and Fort Jay, as federal monuments and giving the National Park Service, to which they were transferred, three years to come up with a management plan. The General Services Administration retained control of the rest of the island.

In its memo, dated April 24, the Department of Justice said the Congressional statute requiring the sale of the island superseded the protected-monument status. The law ''specifically mandates the sale of Governors Island, despite the president's reservation of that land as a monument under the Antiquities Act,'' said the memo, a copy of which was given to The New York Times by a New Yorker who favors turning the island over to the city and the state.

The memo does not deny the validity of the national monument designation. Rather, it states that the government is obliged to try to sell it, monument or not.

''Governors Island is still subject to the existing legislation,'' said Renee Miscione, a spokeswoman for the General Services Administration, referring to the Congressional mandate to sell the island.

She said she could not comment on the problem of selling property with protected national monuments on it.

Senator Schumer, who has been trying to persuade Congress to give Governors Island to New York, is still strongly opposed to its sale, said Bradley Tusk, a spokesman. Mr. Schumer doubts that a sale will go through, but if it does, he will fight it in Congress, Mr. Tusk said. ''That memo is one legal opinion,'' Mr. Tusk said. ''There are other interpretations of the law.''

In the mid-1990's, President Clinton said he would give Governors Island to New York for $1 if the city and the state would come up with plans for public use and protection of historic sites. In January 2000, after years of bickering, Gov. George E. Pataki and Mayor Rudolph W. Giuliani came up with plans for the island that included hotels, apartments, public parkland and museums.

Meanwhile, other problems arose, particularly among Republican leaders in Congress who were not inclined to lend New York a hand. A bill to transfer the island to New York City and State languished in Congress last year.

Many New York preservationists were worried that they had lost their chance to get Governors Island when President Clinton left office. They thought that President Bush would be less inclined to help New York by handing over federal property.